IRS Communications with Unenrolled Return Preparers in Tax Court Cases

Post Date: 5/1/17
Last Updated: 5/1/17


Cross References
- IRS Chief Counsel Notice CC-2017-007, April 18, 2017

The IRS Office of Chief Counsel recently issued guidance to IRS attorneys on how to communicate with unenrolled return prepares. An unenrolled return preparer is someone other than an Attorney, CPA, or Enrolled Agent who prepared the tax return but does not have any authorization to represent the taxpayer before the IRS. In some situations, a taxpayer may select designation “h,” Unenrolled Return Preparer, in Part II of Form 2848. When designation “h” is selected, the Form 2848 is not valid for representation before IRS attorneys.

Revenue Procedure 2014-42 allows an unenrolled return preparer to represent a taxpayer before the IRS during an audit if the unenrolled return preparer has a valid Annual Filing Season Program Record of Completion for the calendar year in which the tax return or claim for refund was signed and filed and has a valid Annual Filing Season Program Record of Completion for the year or years in which the representation occurs. The representation authorized by Revenue Procedure 2014-42 does not permit an unenrolled return preparer to represent a taxpayer before appeals officers, revenue officers, or the Office of Chief Counsel.

Revenue Procedure 2014-42 is effective with respect to tax returns or claims for refund prepared and signed after December 31, 2015. With respect to returns prepared and signed before December 31, 2015, limited practice rights of unenrolled return preparers are governed by Revenue Procedure 81-38, which also prohibits unenrolled return preparers from representing taxpayers before IRS appeals or IRS attorneys. Therefore, under both revenue procedures, unenrolled return prepares may not act as a taxpayer’s representative before IRS attorneys. For example, unenrolled return preparers may not represent a taxpayer at a Branerton conference or other meeting with IRS attorneys or sign any documents on a taxpayer’s behalf.

Author’s Comment: When a taxpayer takes a case to the Tax Court, there is an informal discovery process between the taxpayer’s representative and IRS attorneys before more formal discovery procedures, such as interrogatories, subpoenas, and depositions take place. These informal meetings between the IRS Counsel and the taxpayer’s representative are typically called Branerton conferences, named after a 1974 Tax Court case. The Tax Court expects both sides to at least offer the opportunity for a meeting to each other before allowing formal discovery.

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